The Majority Justices must have all been liberals, yes? Perhaps appointed by Democratic presidents? Wrong. Blackmun, who penned the Supreme Court’s final Majority opinion, was appointed by Republican President Richard Nixon. Also appointed by Nixon were Burgher and Powell. So far, three of the seven Justices in the Majority were appointed by a Republican President. But do not forget that Brennan and Stewart were appointed by Republican President Dwight Eisenhower. This means that five of the seven Majority Justices were appointed by Republican presidents (Douglas and Marshall were appointed by Democratic Presidents Franklin D. Roosevelt and Lyndon B. Johnson, respectively). What’s more, take the two Democratic-appointed judges out of the Majority, and you are still left with all-Republican majority of the Court that legalizes abortion.

Only White (appointed by Democratic President John F. Kennedy) and Renquist (appointed by Nixon) opposed the Court’s decision to legalize abortion in the United States.

So what we see historically is that Roe v. Wade faced six Republican-appointed Justices, five of whom ruled in favor of Roe. Had only four of the six opposed protecting abortion under the Constitution, January 23, 1973 would not have inaugurated the legalized slaughter of 40 million Americans to date.

So what does this mean for the future of American presidential politics? Well, the luxury we have today that voters did not have in the 1960’s and 1970’s is the precedent of Roe v. Wade, which is to say that abortion is a real political issue that shapes elections. However, what Roe v. Wade illustrates is the unpredictability of the voting trends of Supreme Court appointees across their full, life term. Case in point is Blackmun, who was a staunch Republican when appointed to the Court, but by the end of his term, he had become one of the most liberal Justices on the Bench.

More recently, the first substantial challenge to Roe v. Wade after the retirement of pro-Roe Brennan and Marshall occurred in 1993 with Planned Parenthood v. Casey. The case involved Planned Parenthood of Southeastern Pennsylvania as the plaintiff seeking to strike down the Pennsylvania Abortion Control Act, which entailed a 24-hour waiting period prior to an abortion, informed consent (doctors must notify the woman of health risks from having an abortion), spousal notification (woman must inform husband of decision to have an abortion), and parental consent (a minor must have parental consent to have an abortion). It was widely believed that the Court would not only have to consider this particular case, but also make a decision on either upholding or overturning Roe v. Wade. We know what ended up happening.

In theory, what greater opportunity to overturn Roe v. Wade could be conceived? Eight Republican-appointed Justices, five of whom were appointed by Reagan and Bush, and a ninth, Democrat-appointed Justice who voted against legalized abortion in the United States! Well, things don’t often go as they are theorized. Reagan-Bush Justices Kennedy, Souter and O’Connor formed a plurality that upheld Roe v. Wade under the Due Process Clause of the Fourteenth Amendment, claiming the precedent of Eisenstadt v. Baird. They did decide in favor of the 24-hour waiting period, informed consent, and parental consent under the Pennsylvania Abortion Control Act.

The other six Justices wrote or joined opinions, partly concurring and partly dissenting from the plurality. Renquist, Scalia, White and Thomas dissented from the upholding of Roe. Blackmun and Stevens concurred with the upholding of Roe.

So a lesson, I think, that we can take from the history of legalized abortion in the United States is that a presidential candiate–even one as pro-life as Reagan and Bush–cannot be counted on to appoint a Supreme Court Justice that will staunchly oppose Roe. More specifically, I think it is a safe bet, at this point, to assume that a Democratic presidential candidate would appoint a Justice who upholds Roe. By the same token, it is not reasonable to trust that a Republican, pro-life presidential candidate is going to appoint a Justice who desires to overturn Roe. While the Democrat-appointed Justices have maintained staus quo since Roe v. Wade, it was Republican-appointed Justices who ultimately legalized abortion in the United States and, in 1993, sustained legalized abortion.

That said, should we reconsider whether abortion really is an issue in presidential politics? Do we have some semblance of “proportionate reasons” for voting for a pro-choice presidential candidate?

UPDATE: The point of this post is to look briefly at the history of <i>Roe</i> and at assumptions about Supreme Court appointments. It attempts neither to support either the Republican or the Democratic party nor to justify voting pro-choice. Hence, the questions at the end of the post, which are to generate thought and opinion rather than to serve a rhetorical function.

Related

Very true about the history of GOP appointed judges – and a prime example at the state level would be California.

But you must consider how the parties have sorted themselves with the voters, and vice versa, since the FDR coalition (which lasted IMO until Nixon-McGovern) shattered. Social conservatives – the block of voters significantly more in line with Catholic teaching and thought on issues such as abortion, ESCR, euthenasia, cloning, and I think also marriage – have migrated into the GOP after the disappointments of Carter. Their influence is a minority one, in that parties exist to gain power, but it’s very strong. And given the renewed focus on political battles within the court system – a result of courts asserting political power – it is perfectably reasonable to assert that if the constitutional and moral travesty of Roe is to be overturned, we need GOP-appointed justices. The troubles of appointed judges in the past, in other words, does not mean the present and future will continue along that path.

To compare Republicans and a Judicial viewpoint from Judges appointed ack in the 60 and early 70’s is sort of Folly.

Know one I expect could have imagined that Abortion would be a issue. I expect that President Eiesenhower was thinking about “abortion” when he appointed Stevens. By the way he was quoted as saying that was a huge mistake.

The Republican party was also quite different back then. In fact as one Law Prof pointed out if you had to choose which party would be pro-abortion in the 60’s you would pick the Republicans. Even Nixon and others were toying arounds with the supposed population control crisis.

Souter of course was the big disappointment and is one reason why Bush II was so wary of who was he putting on the Bench.

THere is hope that Kenndey will come over more to the pro-life side. We saw indications of that perhaps in his last opinion.

Jeffery Toobin by the way has now stated twice that he feels if McCain gets in there is a good chance Roe- V Wade will be overturned. I think he is right.

Surely you must realize that just because a justice was appointed by a putatively conservative republican, that justice does not necessarily hold judicially conservative views.

And surely you also realize that the party that currently defends the jurisprudence of the justices who uphold Roe is the Democratic party. And on the other side of the coin, by and large, the Republican party supports in principle justices who oppose the judicial activism that wrought Roe v. Wade.

And the political scene since those justices were appointed has changed dramatically. That whole component is ignored in this cursory glance at who appointed whom.

This attempt to write abortion out of the presidential equation assumes that the judicial appointees of either party will not be much different – and this is manifestly not the case.

Compare the appointees of the sitting President with the prospective justices that would have come out of a Kerry presidency, as one place to start.

But certainly no one would argue that there is an absolute guarantee that a justice appointed by a Republican president will work to overturn Roe. No such guarantees exist about anything politically –

e.g. there is certainly no guarantee that a President Barack Obama will absolutely guarantee a working system of government-funded health care.

First, in regards to orientation of judges, it is in fact the case that liberal judges are far more likely to uphold or expand abortion “rights” than conservative judges. Judge Posner recently analyzed the voting patterns of Supreme Court Justices, and the only conservative justice to vote in favor of abortion rights was Hugo Black. (link from which to find the study).

Now the reason this doesn’t show up in your analysis is that you seem to conflate being appointed by a Republican with being a conservative. However, judicial nominations did not become the huge issue it is until after Roe. It was fairly well inconceivable that there would be the judicial power grab that there was when Nixon and Ford were making appointments. Moreover, I would suggest that neither of those presidents were social conservatives who may have been interested in cultural issues anyway.

This lends a bit of bitter taste upon reading your statement that “it was Republican-appointed Justices who ultimately legalized abortion in the United States and, in 1993, sustained legalized abortion” but Democrat appointed judges only maintained the status quo. It smacks a bit of lessening the moral blame of Democrats and increasing the moral blame of Republicans. However, as stated above, most of the Republican appointed justices who voted in favor of Casey were of a different era than those appointed by Reagan. Indeed, had it not been for Democrats like Sen. Kennedy (may he recover from cancer) Casey very likely would have gone the other way. However, because the Democrats borked Bork, we were left with Kennedy.

The proper conclusion, I would offer, is not that Democrats maintained the status quo and Republicans made it worse, but that Republican appointees prior to the Reagan Revolution together with Democrats generally made things worse, while Republican appointees subsequent to the Reagan Revolution generally made things better. When phrased in this way, to reflect the change in the nature of the GOP, the conclusion is more honest to the positions of parties as they stand now. It also becomes clearer that the Republicans are in fact more likely to advance the pro-life cause than Democrats.

That said, I’m still not sure if I’ll vote for John McCain. However, in weighing the life issues he won’t be counted down for judges; it is his record on ESCR that is far more troubling.

Of all those presidents, the only real remotely conservative one was Reagan. Nixon, Ford, Bush I, Bush II — country clubbers. So yeah, liberal judges are to blame, determined by how the voted on the issue.

I think Stephen points out well the deception in this post with regard to where the two major parties were in 1973. I say deception because Policraticus is way too smart to not understand how the platforms have changed and how the parties have changed. In 1973, the Democrat party was full of Catholics making the transition from pro-life/anti-abortion to pro-choice/pro-abortion rights. This was just a sloppy attempt at trying to persuade people not to vote for Republican pro-life/anti-abortion candidates and to make the case for voting pro-choice as he reveals at the end of the post.

I don’t disagree that there might be at times a semblance of proportionate reasons to vote for a pro-choice candidate. I just don’t think Policraticus illustrated any with the selective facts regarding Republican judicial appointments before and after Roe v. Wade.

I don’t think anyone familiar with the Supreme Court in 1973 would deny that most of its Justices were liberal. True, a majority of the Justices were appointed by Republicans, but this refutes the claim that the Roe Justices were liberal only if it is not possible for a Republican President to appoint a liberal Justice. Clearly, though, this is possible. Justice Brennan, for example, was one of the most liberal justices ever to sit on the Supreme Court, yet he was appointed by a Republican president.

This attempt to write abortion out of the presidential equation assumes that the judicial appointees of either party will not be much different – and this is manifestly not the case.

There was no such attempt. I merely posed the question for you and others to ponder and answer.

It sounds like you’re trying to assuage your conscience that it is ok to vote for Obama.

Not so. I have stated countless times that I will not support or vote for Obama.

The proper conclusion, I would offer, is not that Democrats maintained the status quo and Republicans made it worse, but that Republican appointees prior to the Reagan Revolution together with Democrats generally made things worse, while Republican appointees subsequent to the Reagan Revolution generally made things better.

If the Supreme Court appointments of Reagan (1981-1989) and Bush (1989-1993) do not fall under this misty “Reagan Revolution,” then what would? Clinton Justices?

It smacks a bit of lessening the moral blame of Democrats and increasing the moral blame of Republicans.

Absolutely, it does. The Republican-appointed Justices brought on and sustained Roe. The Democrat-appointed Justices from the past 35 years are happy to help.

I just don’t think Policraticus illustrated any with the selective facts regarding Republican judicial appointments before and after Roe v. Wade.

What was selective about what I wrote? History is history.

First, in regards to orientation of judges, it is in fact the case that liberal judges are far more likely to uphold or expand abortion “rights” than conservative judges.

Nothing in my post suggests the contrary.

Now the reason this doesn’t show up in your analysis is that you seem to conflate being appointed by a Republican with being a conservative. However, judicial nominations did not become the huge issue it is until after Roe.

You may want to re-read my post. I stated this exact point, namely, that abortion did not really become an election (and nomination issue) until after Roe.

It also becomes clearer that the Republicans are in fact more likely to advance the pro-life cause than Democrats.

Is it clearer? With Reagan and H.W. Bush setting the actual precedent for our evalution (as opposed to your theoretical assertion), then you have no historical basis to support this.

It becomes clear that politics is not the answer and conversion is. Not until this country is converted to valuing the sanctity of every human life from conception to natural death will abortion be outlawed. And once that conversion happens, it won’t matter which political party is in office — the laws will be corrected very quickly.

Otherwise it is a waste of time. True pro-lifers realized along time ago not to look to the Republican party for help.

In regards to your response to my point about history. The title of the post is “Are liberal judges responsible for Roe v. Wade?” You then go on to point out how most of the judges on the Supreme Court were appointed by Republican presidents. You neglect to mention that the anti-abortion plank in the Republcian Party Platform was not inserted until 1980, 7 years after Roe. Have you never heard of the term “Rockefeller Republican”? There were and might still be a few liberal Republicans. There were certainly many back in 1973. I pointed out above how the Democratic Catholics went from defending the unborn, (Ted Kennedy believe it or not) to being the most determined pro-abortion rights politicians ever. At least until Barack Obama. There has not been much progress since the Republican party took a stand against abortion, but there has been some. There is also the fact that the Democrats have put up fierce resistance to any judical nominee they even suspected of possibly being against Roe v. Wade. This resistance has been led by Catholics: Kennedy, Leahy, Biden, Kerry, and others. You never hear on this blog the kind of contempt for these people and their positions on abortion, embryonic stem cell research, “same-sex marriage”/domestic partnerships as you do for say a Rick Santorum for his position on the Iraq War. So much for a consistent ethic of life. You can vote for pro-choice candidates. But your justification for doing so and encouraging others to not vote for Republicans is akin to somenoe who supports “affirmative action” not voting Democratic because the Democrats instituted Jim Crowe. The Republican party changed in regards to this issue between 1973 and 1980, for the better I might add. The Democratic party changed for the worse.

A part of the blame should be given to the Enlightenment project, from which we cannot escape: Alasdair MacIntyre has made the point that we are all either liberal liberals, conservative liberals, or radical liberals, and that living a more authentically Christian life is quite hard, if not impossible, in this framework.

I agree, but even so…….unborn children deserve legal protection. The Courts outrageously hijacked the democratic, legislative process and imposed their will. Who, now, can best help to end this? Roberts and Alito and the like may or may not, but there is no way an Obama appointee will – heck, one of his highest stated legislative priorities is the “freedom of choice act,” and any GOP president will face huge pressure of the sort Catholics should want applied. This was not true in pre-Reagan, but it is now.

So a lesson, I think, that we can take from the history of legalized abortion in the United States is that a presidential candiate–even one as pro-life as Reagan and Bush–cannot be counted on to appoint a Supreme Court Justice that will staunchly oppose Roe.

You appear to be calling into question the Holy Grail of the RepubliCatholic Faith. I will pray for your soul.

Greg, I would be wary of judging who is truly pro-life or not. Do you really think yourself qualified? And I realize that I will be seen as defending the Republican party and putting party before the Catholic faith. Anyone who favors the Republican party over the Democratic party on this blog runs that risk. It doesn’t make it true. I believe the people here who constantly attack the Republican party and ignore the Democrats are just as guilty of putting ideology before truth. I think both parties stink. And there will come a day when I do not vote anymore. It might be this year who knows.

You then go on to point out how most of the judges on the Supreme Court were appointed by Republican presidents. You neglect to mention that the anti-abortion plank in the Republcian Party Platform was not inserted until 1980, 7 years after Roe

This is why I bring up Planned Parenthood v. Casey and the five Justices appointed by Ronald Reagan (1981-89) and George H.W. Bush (1989-1993). The post is to be read as a whole, and I consider the issue you raise within it: “Well, the luxury we have today that voters did not have in the 1960’s and 1970’s is the precedent of Roe v. Wade, which is to say that abortion is a real political issue that shapes elections.”

There were and might still be a few liberal Republicans. There were certainly many back in 1973.

I do not think that an honest look at the politics and voting trends of Blackmun, Burger, Brennan, Stewart, and Powell throughout their tenure indicates that these were all “liberal” Republicans at the time of Roe v. Wade. Brennan I will grant to you.

There is also the fact that the Democrats have put up fierce resistance to any judical nominee they even suspected of possibly being against Roe v. Wade

Of course. I do not challenge this point.

You never hear on this blog the kind of contempt for these people and their positions on abortion, embryonic stem cell research, “same-sex marriage”/domestic partnerships as you do for say a Rick Santorum for his position on the Iraq War.

Then you must not have been a Vox Nova reader for long. I recommend perusing the archives, which will correct your perception.

So much for a consistent ethic of life. You can vote for pro-choice candidates. But your justification for doing so and encouraging others to not vote for Republicans is akin to somenoe who supports “affirmative action” not voting Democratic because the Democrats instituted Jim Crowe.

I, for one, have never told anyone not to vote for Republicans. Nor have I ever encouraged voting for Democrats. The only time I really went out on a limb in terms of trying to influence our readers’ voting choice was with this post.

Policraticus, I see you have added an update at the end of the post clarifying your intent. Fair enough. As far as Catholic Democrats getting the same treatement as Catholic Republicans. Please point me to the posts where this occurred. I have been reading this blog since it began I believe. This blog is very polarized. In my opinion those on the “right” for lack of a better term are much more open to the truth that “conservatives” may not live up to Catholic standards than those on the “left”are when it comes to their “liberals”.

Your response to my assertion that, “The proper conclusion, I would offer, is not that Democrats maintained the status quo and Republicans made it worse, but that Republican appointees prior to the Reagan Revolution together with Democrats generally made things worse, while Republican appointees subsequent to the Reagan Revolution generally made things better.” was to respond with the following question:

If the Supreme Court appointments of Reagan (1981-1989) and Bush (1989-1993) do not fall under this misty “Reagan Revolution,” then what would? Clinton Justices?

Appointments of Reagan and Bush do fall under that Reagan Revolution, Bush less so than Reagan. However, looking at only those judges appointed post-Carter, what do we have?

So in the Republican column we have 3 solidly anti-Roe/Casey justices, 2 solidly pro-Roe/Casey justices, 1 semi-Roe pro-Casey justice, and 2 likely anti-Roe/Casey justices. Worst case scenario is that if it were left to the Republicans everything would be split. Best case scenario is that a majority would come out in favor of overturning Roe/Casey. Even the worst case scenario would be better if Democrats hadn’t Borked Bork.

Meanwhile, in the Democrat column we have 2 justices that would weaken any limitations on abortion.

So to respond, those justices that you named do fall under that revolution. And the pro-life movement would have victories under more conservative presidents.

I would further point out that the weakness of your argument is made plain by your own posting…

In response to my shifting of the moral blame assertion, you responded that, “Absolutely, it does. The Republican-appointed Justices brought on and sustained Roe. The Democrat-appointed Justices from the past 35 years are happy to help.”

Yet you yourself recognize that the GOP that named the Roe court is different from the GOP that named subsequent justices. (“I stated this exact point, namely, that abortion did not really become an election (and nomination issue) until after Roe.”) Consequently to group the two types of GOP together would be like grouping together FDR era and Clinton era Democrats on free trade. In both cases their fundamental orientation has changed, and your analysis becomes a case of trying to count both apples and oranges as oranges.

You close by saying that “Is it clearer? With Reagan and H.W. Bush setting the actual precedent for our evalution (as opposed to your theoretical assertion), then you have no historical basis to support this.”

Well, by my above rundown of post-Carter GOP nominees, I think it does!

This blog is very polarized. In my opinion those on the “right” for lack of a better term are much more open to the truth that “conservatives” may not live up to Catholic standards than those on the “left”are when it comes to their “liberals”.

That year has already arrived for me. I recently read somewhere that Scalia said if Roe V Wade was overturned and a particular state’s law kept abortion legal, that he would uphold that state’s law. Not helpful.

Zach writes:
This attempt to write abortion out of the presidential equation assumes that
the judicial appointees of either party will not be much different – and
this is manifestly not the case.

Poli replies:
There was no such attempt. I merely posed the question for you and others to ponder and answer.

Greg writes:
It becomes clear that politics is not the answer and conversion is.
Not until this country is converted to valuing the sanctity of every human life
from conception to natural death will abortion be outlawed. And once that conversion happens,
it won’t matter which political party is in office — the laws will be corrected very quickly.

Otherwise it is a waste of time. True pro-lifers realized along time ago not to look
to the Republican party for help.

Poli replies:
Greg,
I truly could not agree more with you.

Am I wrong in concluding that Greg and Policraticus have written abortion out of the presidential equation, at least until this country values the sanctity of human life and by then according to Greg it wont’ matter.

Why stop at removing abortion from the equation. Couldn’t someone else argue that we should remove war as well? How about poverty? What issues should be in the political equation?

Sorry if I look like I’m playing gotcha Policraticus. But is abortion in the political equation or not? You yourself say you woudn’t vote for Obama, Clinton, Guliani, or other pro-abortion rights or not fully pro-life candidates. Yet you agree with Greg and this post asks the question whether abortion should be an issue in presidential politics.

If I were to speculate, I would say that Poli doesn’t expect anything to change on the abortion front and he believes the bishops call strictly for nonsupport of politicians that publicly support abortion. It is something I affectionately refer to as the monastic position: one is compelled to remove oneself from the greater society when it is irreconcilably attached to evil.

It has been 35 years since Roe V Wade made abortion on demand the law of the land. We have had 4 Republican presidents in that time. In that 35 year time span, nothing has changed. A woman can still abort her baby at any point in the pregnancy. Not one baby has been saved by any law signed in that 35 year time span. Why would I think anything will be different this time around?

Very interesting Poli. When I read Clarence Thomas’ memoir, he notes that he was staunchly pro-choice at the time of his nomination to the Supreme Court even though pro-aborts thought he wasn’t. However, he has since changed his mind on the abortion decision that made abortion legal. When I left his book, I still wasn’t sure if he believes abortion is wrong. He thinks Roe-V-Wade was wrong (which many pro-choicers acknowledge was sloppy) but abortion?

Greg, I believe there is the possiblilty that Stevens and Ginsburg may retire. I think I have read that they have been holding on until a Democrat is elected. That’s two pro-Roe votes on the court that could be replaced. And then Scalia is getting up there in years. He could be an anti-Roe vote that would be replaced. That’s “Change you can believe in.”

I recently read somewhere that Scalia said if Roe V Wade was overturned and a particular state’s law kept abortion legal, that he would uphold that state’s law. Not helpful.

Greg. But Constitutional. The solution is to seek the conversion of the citizens of that state, not ignoring the Constitution and giving the Federal Government power that it should not have. (Modifying it through an amendment is perfectly fine.)

I really think people have a basic problem with math here. This next term could very well be it!!! Stevens is very likely to retire. We have a heck of a lot more influence with McCain than Obama on this issue

This could be the time when the foundation is set to get this back to the states!!

TO the more Democrat leaning here. Can you imagine that. Your party and in fact many of your concerns would get a greater voice. It would be the first step of not making abortion such a national Federal issue and thus put many of us Pro-lifers into a position to where we feel we cannot even vote for person x because to their position on the unborn

The whole post is beside the point. The question posed was, “Are liberal judges to blame for Roe v. Wade?” The post purports to answer this question by pointing out that Republican Justices (appointed as far back as the Eisenhower administration) often voted in favor of Roe. That’s not a refutation of Feddie’s original claim in any way whatsoever — several decades ago, Republican appointees like Brennan, Blackmun, Stevens, etc., ended up being solidly “liberal.” Therefore, Feddie’s original claim was precisely true — liberal Justices (including liberals appointed by Republicans) came up with and upheld Roe.

The situation has now changed, however. Out of recent Republican appointments, Alito, Roberts, and Thomas are all solidly conservative and anti-Roe. Souter is an exception, but Bush II has been diligent in trying to avoid the same outcome. The fact that Kennedy voted to maintain Roe was completely a fluke — Kennedy himself changed his mind at the last minute in the Casey decision, after oral argument, which was hardly Reagan’s fault. Nor was it Reagan’s fault that the Democrats had blocked a solid anti-Roe appointment in Robert Bork.

Bottom line — you simply can’t predict how future Republican appointments will behave based on the fact that an Eisenhower appointment was a staunch liberal.

It has been 35 years since Roe V Wade made abortion on demand the law of the land…In that 35 year time span, nothing has changed… Not one baby has been saved by any law

Partial-birth abortion restrictions. Born alive protection. Parental notification laws. Ceasing US subsidies to third world abortion clinics. Medicaid regulations as pertaining the abortion industry. Not one baby saved?

True pro-lifers realized along time ago not to look to the Republican party for help.

They also learned not to pretend that Democrats won’t make the situation even worse, regardless of how many people here would like to make them forget. Remind us again, Greg, what was that piece of legislation Clinton worked on his first day in office?

Why didn’t Regan or the Bushes strip the funding from Planned Parenthood?

Presumably, one big reason was the fact that fellow travelers and useful idiots of the abortion lobby (I’m not looking at you, but if the shoe fits…) kept voting to office citizens with similarly cavalier rationalizations for enabling abortion.

As for your other arguments, everyone knows and continually keeps getting reminded that there always have been and always will be “another method to kill the baby” — even before Roe v Wade and even if Planned Parenthood was stripped of funding, so I don’t find that at all convincing. I could raise similar objections to your other points, but why don’t you take all that up with NARAL and Obama? I’m sure they’ll buy the fact that not one abortion has been or will be prevented by such measures and thereby drop their opposition altogether. Problem solved.

As interesting a comparison, as we hear once again: “it really is all about the appointments to SCOTUS…” I maintain that since 1970 a Republican appointed massive majority existed on the court from year to year. Never a Democratic appointed majority. So, as whines about who controlled what branch of government exists to lay blame for the conservative revolutions destruction of America: SCOTUS has been in Republican hands for nearly 40 years. And at least one other branch of government has been in Republican hands for 75% of the rest of the time. And while uncommon, the Republicans held all branches of government for several years over this period (never the Dems). This country’s leadership for the past 40+ years at all levels has been overwhelmingly conservative and Republican. Its time to admit it. And accept responsibility.

Importantly, Roe is a Republican Supreme Court decision, Casey is a Republican Supreme Court decision and the Republicans have dominated the court for nearly 40 years.

And why is it that getting a Republican in the Presidency is a moral duty? Should one reward the pro-life incompetence of this party for four more years based on continued failures? (This continual reward for failing to get the job done reinforced to party bosses that power would be best maintained if the “job” never got done.)

The SCOTUS calculus is easy and enlightening (in fact, as I’ve noted before, if every Democratically-appointed justice was in the bathroom during the vote count for Roe, it would still have passed easily).

If after 40 years, Roe remains, it is due to dramatic Republican failures and inaction as much as Democratic activism.

How tragic it is, on so many levels, that all of the political polarization caused by abortion-as-a-national-issue was so easily avoidable. Remember, Justice White – the lone SCOTUS nominee of Jack Kennedy – didn’t merely vote in the minority in Roe, he wrote the dissenting opinion. All the Democratic party needed to do was say “we agree with Justice White’s opinion. Abortion is not a protected right under the U.S. Constitution but is a matter left to the states. They may or may not ban it, limit it, regulate it, or promote it.” The abortion issue would never have become a matter of national politics. By failing to follow the lead of JFK’s Justice, the Dems gave their opponents a weapon that they have managed to use with remarkable skill.

While avoiding doing very much to reverse the curse of legalized abortion (other than lip service) the Repubs have used the issue to detach from the Dems a significant part of their traditional constituency – Catholics and Evangelicals who take the issue seriously and find it nearly impossible to vote for for someone who can’t bring him or herself to oppose things like partial-birth abortion. If the Dems had adopted White’s opinion in Roe as their position would things like the Moral Majority, Christian Coalition and the electoral sentiment they represent have ever gotten off the ground ? I doubt it. And without the phenomenon of the Culture War, which is largely though not exclusively based on abortion, there would have been no Bush presidency (just ask John Kerry), no Bush, Sr., and probably no Reagan.

It makes one wonder (not too paranoid I hope) about whether or not the two-party division over this issue is really part of an overall strategy to mute the Catholic voice in America. Recall that there was great fear among the elites in the ’40s and ’50s over the “threat” of “Catholic power.” What better way to neutralize the emergence of a unified and full-throated Catholic social justice endeavor than by forcing serious Catholics to have a foot in both camps. There actually was more than a hope that such a unified, consistently pro-life, anti-war, anti-poverty Catholic political ethos (exemplified by RFK and Sargent Shriver, etc) was taking hold in the late ’60s. Roe changed all that. Until it is repudiated by all Catholics and others of good will, we will continue to face this quadrennial dilemma and find diminished any hope we might have had of being real salt and light in American culture.

Attacking anti-abortion Catholics with ridicule or facile tu quoque arguments (as some on this blog are wont to do) is not helpful. Far better to recognize the misstep that was made by the Dem leadership in the wake of Roe and work on persuading them to reconsider the national party’s position on this issue. A neutral position on the issue at the national level (“Justice White was right in Roe; that’s the kind of Justice real Democrats put on the Court”), would solve the dilemma that for over a generation has neutralized our ability to bring the Gospel (all of it) to bear on American society.

As I’ve pointed out a few times in this comment thread, the post is to be taken as a whole. One may argue that several of the Republican-appointed Justices in 1973 were “liberal” (a tough assertion to back up in terms of SIX Justices). One must also admit, however, that the Reagan-Bush appointed trio of Souter, O’Connor and Kennedy upheld Roe. In 1993, there were EIGHT Republican-appointed Justices and one anti-Roe Democrat-appointed Justice. The ball was dropped by Reagan and Bush in their judicial choices.

“The threat of a Supreme Court of David Souters is ironically what keeps conservatives voting Republican even when Republicans appoint David Souters.

“The cases conservatives cite to demonstrate the arrogance of jurists legislating from the bench are in almost all instances the product of Republican jurisprudence. A majority of justices who voted with the majorities in Roe, Furman v. Georgia, Kelo, and Lawrence v. Texas—outrageous decisions vacating abortion laws in all fifty states, invalidating existing capital punishment laws, eroding private property rights, and making sodomy a constitutional right—were placed on the bench by Republican presidents. While conservatives denounce the decisions, they withhold criticism of the Republican presidents who made an unelected shadow legislature of the courts. Perversely, Republicans benefit from the problem they helped create, which has prompted more than one cynic to wonder if officeholders willfully perpetuate what they rail against during campaign season as a way of forever keeping alive the bogeymen that haunt conservative voters into casting Republican ballots.”